Exhibit 10.17
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this Agreement")
is made as of February 16, 2000, by and among Ubiquitel Holdings, Inc., a
Delaware corporation (the "Company"), Xxxxx Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxx X.
Judge, The Xxxxxx Group, Inc., a State of Washington corporation ("The Xxxxxx
Group"), U.S. Bancorp (each a "Founder" and collectively "Founders"), the
individuals and entities listed on the signature page hereto as Purchasers (the
"Preferred Stockholders"), Paribas North America, Inc., a Delaware corporation
("Paribas"), BET Associates, L.P., a Delaware limited partnership, ("BET"), and
DLJ Merchant Banking Partners II, L.P., a Delaware limited partnership("DLJ").
RECITALS
A. The Company and the Preferred Stockholders are parties to a
Series A Preferred Stock Purchase Agreement dated as of November 23, 1999 (the
"Series A Agreement") and a Registration Rights Agreement dated as of November
23, 1999 (the "Registration Rights Agreement"), which governs the rights of the
Founders and the Preferred Stockholders to cause the Company to register shares
of the Founder Stock and shares of the Voting Common Stock (as defined below)
issuable to the Preferred Stockholders pursuant to the Series A Agreement;
B. The Company and Paribas are parties to a Credit Agreement dated
as of December 28, 1999 as the same may be amended, amended and restated,
supplemented, restructured or otherwise modified from time to time (in whole or
in part and without limitation as to terms, conditions or covenants and without
regard to the principal amount thereof) and in effect, including all related
notes, collateral documents, guaranties, instruments and agreements entered into
in connection therewith, and any successive restructurings, renewals, extensions
or refundings thereof, (the "Paribas Credit Agreement") and a Warrant Agreement
dated as of December 28, 1999 (the "Paribas Warrant") pursuant to which the
Company issued to Paribas Common Stock Purchase Warrants to purchase up to
574,402 shares of Nonvoting Common Stock of the Company (the "Paribas Stock");
C. The Company and BET are parties to a Purchase Agreement dated as
of December 28, 1999 (the "BET Purchase Agreement") and a Warrant Agreement
dated as of December 28, 1999 (the "BET Warrant") pursuant to which the Company
issued to BET Common Stock Purchase Warrants to purchase up to 2,489,075 shares
of Voting Common Stock of the Company (the "BET Stock"); and
D. The Company and DLJ are parties to a Preferred Stock Purchase
Agreement (the "Series B Preferred Stock Purchase Agreement") pursuant to which
the Company will issue and sell to DLJ shares of the Company's 7% Senior
Pay-in-Kind Non Voting Convertible Preferred Stock (the "Non Voting Preferred
Stock"), which is convertible into the Company's 7% Senior Pay-in-Kind
Convertible Preferred Stock (the "Voting Preferred Stock" and, together with the
Non Voting Preferred Stock, "Series B Preferred Stock") for an aggregate
purchase price of $25,000,000 ("Initial Shares"). The Series B Preferred Stock
Purchase Agreement also provides that if the Company's initial public offering
does not go
forward, and at the request of the Company, DLJ will purchase an additional
$100,000,000 of Series B Preferred Stock ("Additional Shares"). The Initial
Shares, the Additional Shares and the shares of Voting Common Stock into which
the Initial Shares and the Additional shares are convertible are referred to
herein as the "DLJ Stock".
E. The Company, the Founders and the Preferred Stockholders desire
to amend and restate the Registration Rights Agreement as set forth herein in
order to provide for the rights of Paribas, BET and DLJ to cause the Company to
register shares of the Paribas Stock, shares of the BET Stock and shares of DLJ
Stock..
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1. Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-1" means such form under the Act as
in effect on the date hereof or any registration form subsequently adopted by
the SEC under the Act replacing such form.
(c) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(d) The term "Founder Stock" means the 3,417,000 shares
of Voting Common Stock presently issued to the Founders and, if and to the
extent vested, any of the 16,000,000 shares of Nonvoting Common Stock presently
issued to the Founders, and any additional shares of Voting Common Stock or
Nonvoting Common Stock issued to the Founders as a result of stock splits, stock
dividends, or other recapitalizations.
(e) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 hereof.
(f) The term "IPO" means the Company's first sale of
securities to the general public pursuant to a registration in a firm commitment
underwritten offering registered under the Act, which results in gross proceeds
to the Company (prior to underwriters' discounts and expenses) of not less than
fifty million ($50,000,000) dollars.
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(g) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(h) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(i) The term "Series A Registrable Securities" means the
shares of Voting Common Stock issued or issuable upon conversion of the Series A
Preferred Stock or any shares of Voting Common Stock issued or issuable as a
result of stock splits, stock dividends, or other recapitalization.
(j) The term "BET Registrable Securities" means the BET
Stock or any shares of Voting Common Stock issued or issuable as a result of
stock splits, stock dividends, or other recapitalization.
(k) The term "DLJ Registrable Securities" means the DLJ
Stock or any shares of Voting Common Stock issued or issuable as a result of
stock splits, stock dividends, or other recapitalization.
(l) The term "Paribas Registrable Securities" means the
shares of Voting Common Stock issued or issuable upon conversion of the Paribas
Stock or any shares of Voting Common Stock issued or issuable as a result of
stock splits, stock dividends, or other recapitalization.
(m) The term "Registrable Securities" means the Series A
Registrable Securities, the BET Registrable Securities, the Paribas Registrable
Securities, the DLJ Registrable Securities and, solely with respect to the
piggyback registration rights provided in Section 1.3 below, the Founder Stock.
(m) The term "SEC" shall mean the Securities and
Exchange Commission.
(n) The term "Series A Preferred Stock" means the Series
A Preferred Stock purchased by the Preferred Stockholders pursuant to the Series
A Agreement.
(o) The term "Voting Common Stock" means the Company's
voting common stock, par value $0.001 per share.
1.2. Request for Registration.
(a) If the Company shall receive at any time a written
request from (i) the Holders of a majority of Series A Registrable Securities,
and/or (ii) the Holders of a majority of the Paribas Registrable Securities,
(iii) the Holders of a majority of the BET Registrable Securities, or (iv) the
Holders of a majority of the DLJ Registrable Securities that the
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Company file a registration statement on Form S-1 under the Act covering the
registration of any Registrable Securities held by such Holder, then the Company
shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any
event within 120 days of the receipt of such request, the registration under the
Act of all Registrable Securities which the Holders request to be registered,
subject to the limitations of subsection 1.2(b).
(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to subsection 1.2(a) and the
Company shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by the Company and shall be
reasonably acceptable to a majority in interest of the Initiating Holders,
unless DLJ is an Initiating Holder, in which case DLJ shall select the
underwriter. In any such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.2, if the underwriter advises the Company in
writing that, in its good faith opinion, the inclusion of all Registrable
Securities and other securities proposed to be included in such registration
would adversely affect the offering and sale (including price) of all
securities, then the Company shall provide a copy of such written advice to all
Holders of Registrable Securities which would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities proposed to be
included in such registration shall be included in the following order:
(i) First, the Registrable Securities proposed to
be included in such registration by the Initiating Holders, pro rata based upon
the number of Registrable Securities owned by each Initiating Holder at the time
of registration;
(ii) Second, other securities which constitute
Registrable Securities which are proposed to be included in such registration,
pro rata based upon the number of Registrable Securities owned by each Holder at
the time of registration; and
(iii) Third, other securities not referred to in
(i) or (ii) above.
Notwithstanding the foregoing, in the event the managing underwriter
advises the Company in writing that the inclusion of Registrable Securities
proposed to be included by
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members of the Company's management in such registration may adversely affect
the offering and sale (including price) of all securities to be included in such
registration, the number of shares of Registrable Securities proposed to be
included by the management may be disproportionately cut back.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the Chief Executive Officer of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would (i) require the disclosure of a material transaction or other matter and
such disclosure would be disadvantageous to the Company or (ii) adversely affect
a material financing, acquisition, disposition of assets or stock, merger or
other comparable transaction, the Company shall have the right to defer taking
action with respect to such filing for a period of not more than one hundred
eighty (180) days after receipt of the request of the Initiating Holders;
provided, however, that the Company may not utilize this right more than once in
any twelve-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) Other than with respect to a demand initiated
by DLJ, after the IPO of the Company, if the Company has effected two
registrations pursuant to this Section 1.2 for each of (i) the Holders of a
majority of Series A Registrable Securities, or (ii) the Holders of a majority
of the Paribas Registrable Securities, or (iii) the Holders of a majority of the
BET Registrable Securities, and such registrations have been declared or ordered
effective, it being understood that the Company shall be obligated after the IPO
to effect one registration pursuant to this Section 1.2 upon the request of
Paribas;
(ii) During the period starting with the date
thirty (30) days prior to the Company's good faith estimate of the date of
filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1.3 hereof; provided, that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose
of shares of Registrable Securities that may be registered on Form S-3 pursuant
to a request made pursuant to Section 1.11 below, it is being understood that
the Company shall be obligated to effect a registration on Form S-3 at any time
pursuant to Section 1.11 below.
(e) A requested registration under this Section 1.2 may be rescinded
by written notice to the Company by a majority of the Initiating Holders. Such
rescinded registration shall not count as a registration statement initiated
pursuant to this Section 1.2 for purposes of paragraph (d) above if such request
is rescinded by a majority of the Initiating Holders prior to the filing of a
registration statement with the SEC.
1.3. Company Registration. If (but without any obligation to
do so) the Company proposes to register (including for this purpose a
registration effected by the Company
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for stockholders other than the Holders) any of its stock or other securities
under the Act in connection with the public offering of such securities solely
for cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan), the Company shall, at such time, promptly
give each Holder written notice of such registration. Upon the written request
of each Holder given within thirty (30) days after mailing of such notice by the
Company in accordance with Section 3.5, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered. The
Founders shall have the right to have the shares of the Founder Stock included
in any Company registration under this Section1.3; provided, however, that such
rights shall be subject and subordinate to the rights of the Holders (other than
the Founders) and; provided further that no shares of the Founder Stock shall be
included in any Company registration hereunder, unless and until all shares of
Holders (other than the Founders) requesting that their Registrable Securities
be registered are included in such offering. The number of Registrable
Securities and other securities proposed to be included in such offering shall
be included in the following order:
(a) First, the securities proposed to be included by the
Company;
(b) Second, the Registrable Securities held by the
Holders of Registrable Securities other than the Founders, pro rata based upon
the number of Registrable Securities owned by each Holder at the time of such
registration;
(c) Third, the Registrable Securities held by the
Founders, pro rata based upon the number of Registrable Securities owned by each
Founder at the time of such registration; and
(d) Fourth, other securities not referred to in (a), (b)
or (c) above.
In connection with the exercise of its registration rights pursuant
to this Section 1.3, DLJ shall have the right to approve the underwriter for
such registration. Notwithstanding the foregoing, in the event the managing
underwriter advises the Company in writing that the inclusion of Registrable
Securities proposed to be included by members of the Company's management in
such registration may adversely affect the offering and sale (including price)
of all securities to be included in such registration, the number of shares of
Registrable Securities proposed to be included by the management may be
disproportionately cut back.
1.4. Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to
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one hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed; provided, however, that (i) such
120-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration
following the receipt of any notice given by the Company pursuant to Section
1.4(f) or at the request of an underwriter of Common Stock (or other securities)
of the Company; and (ii) in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a continuous or
delayed basis, such 120-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act, permits an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (x) includes any
prospectus required by Section 10(a)(3) of the Act or (y) reflects facts or
events representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (x) and (y) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act in the
registration statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them
and give such Holders reasonable time to review and comment on such documents.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
(f) (i) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and
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(ii) (A) use its best efforts to prevent the
issuance of any stop order or obtain its withdrawal at the earliest possible
moment and
(B) prepare and furnish to such Holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed including without limitation,
the automated quotation system of the National Association of Securities
Dealers, Inc.'s National Market System or the New York Stock Exchange, Inc.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by cold
comfort letters for delivery to the Holders.
(j) Use its best efforts to obtain from its counsel an
opinion or opinions in customary form for delivery to the Holders.
(k) Cause it employees and personnel to use their
reasonable best efforts to support the marketing of the Registrable Securities
(including, without limitation, the participation in "road show presentations")
to the extent possible taking into account the Company's business needs and the
requirements of the marketing process.
1.5. Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
reasonably requested to effect the registration of such Holder's Registrable
Securities.
(b) Other than with respect to a demand initiated by
DLJ, the Company shall have no obligation with respect to any registration
requested pursuant to Section 1.2 or Section 1.11 if the number of shares or the
anticipated aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number of shares or
the anticipated aggregate offering price required to originally trigger the
Company's
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obligation to initiate such registration as specified in subsection 1.2(a) or
subsection 1.11(b)(2), whichever is applicable.
1.6. Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2 or Section
1.11, including (without limitation) all registration, filing and qualification
fees, printers' and accounting fees, fees and disbursements of one counsel for
the Initiating Holders, shall be borne by the Company.
1.7. Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12), including (without limitation) all registration, filing, and
qualification fees, printers, legal and accounting fees relating or
apportionable thereto, but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8. [reserved]
1.9. [reserved]
1.10. Indemnification. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, such Holder's members, officers,
directors, partners, shareholders and employees, any underwriter (as defined in
the Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, or the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, or the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to any Holder,
underwriter or controlling person in any such case for any such loss, claim,
damage, liability, or action to the
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extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information relating to such
Holder, underwriter or controlling person furnished expressly for use in
connection with such registration by such Holder, underwriter or controlling
person.
(b) To the extent permitted by law, each selling Holder
will, severally, and not jointly and severally, indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, or the 1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information relating to such Holder, underwriter or controlling person
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.10(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(b) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 1.10(b) exceed the lesser of such Holder's allocable share
of such indemnity payment and the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to such indemnifying parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of liability to the indemnified party under this
Section 1.10 to the extent, and only to the extent, prejudiced thereby, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 1.10.
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(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11. Form S-3 Registration. In case the Company shall receive
from any Holder or Holders a written request or requests that the Company effect
a registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, and the Company is then eligible to register the Common Stock on Form
S-3, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 15 days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.11: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $500,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, to effect such a Form S-3 Registration would (i) require the
disclosure of a material transaction or other matter and such disclosure would
be disadvantageous to the Company or (ii) adversely affect a material financing,
acquisition, disposition of assets or stock, merger, or other comparable
transaction, in which case the Company shall have the right to defer the filing
of the
11
Form S-3 registration statement for a period of not more than sixty (60) days
after receipt of the request of the Holder or Holders under this Section 1.11;
provided, however, that the Company shall not utilize this right more than once
in any twelve month period; (4) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 1.11; or (5)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.11, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, shall be borne by the Company. Registrations
effected pursuant to this Section 1.11 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.12. Assignment of Registration Rights
(a) The rights to cause the Company to register
Registrable Securities pursuant to this Section 1 may be assigned (but only with
all related obligations) by a Holder to a transferee or assignee of such
securities if, other than in the case of a transfer of DLJ Registrable
Securities, (x) such transfer involves all the Registrable Securities held by
the Holder, or (y) a transfer by a Holder which is a corporation to any
affiliate, officer, director, partner, member, or employee of such Holder and,
in the case of Paribas, any bank which may become a party to the Paribas Credit
Agreement, a transfer by a Holder which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner, or a transfer
by a Holder which is a limited liability company to a member of such limited
liability company or a retired member who resigns after the date hereof or to
the estate of any such member or retired member; or a transfer by a Holder which
is an individual to a member of the immediate family of such individual or to a
trust solely for the benefit of such individual or the members of the immediate
family of such individual or to the estate of such individual; provided, that
all such assignees who would not qualify individually for assignment of
registration rights under subsection 1.12 (a) shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 1 and shall provide a power of attorney to
that effect if requested by the Company.
(b) No assignment or transfer pursuant to this Section
1.12 shall be effective unless (i) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.14 below;
and (iii) such
12
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
1.13. Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of 75% of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of either of the dates set forth in subsection 1.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.14. "Market Stand-Off" Agreement. All Holders hereby agree
that, during the period of duration specified by the Company and an underwriter
of common stock or other securities of the Company, following the effective date
of a registration statement of the Company filed under the Act, they shall not,
to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any securities of the
Company held by them at any time during such period except common stock included
in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first
two such registration statements of the Company which cover common stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering;
(b) all executive officers and directors of the Company
and all other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements; and
(c) such market stand-off time period shall not exceed
one hundred eighty (180) days in the case of an initial public offering of the
company and ninety (90) days for all other registrations filed by the Company on
it behalf.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of
Preferred Stockholders (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-8 or similar forms which may be promulgated in the
future, or a registration relating solely to a Commission Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
13
1.15. Termination of Registration Rights.
No Holder shall be entitled to exercise any right
provided for in this Section 1 after ten (10) years following the effective date
of the IPO.
2. Covenants of the Company.
2.1. [reserved]
2.2. Exchange Act Compliance. The Company shall comply with
all of the reporting requirements of the 1934 Act and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of common stock. The
Company shall cooperate with each Holder in supplying such information as may be
necessary for such Holder to complete and file any information reporting forms
presently or hereafter required by the SEC as a condition to the availability of
Rule 144.
2.3. Negative Covenants.
(a) So long as the Series A Preferred Stock, the DLJ
Stock, the Paribas Stock, and the BET Stock are still outstanding, the Company
shall not, without the prior written consent of the Holders of at least seventy
five percent (75%) each of the Series A Registrable Securities, the BET
Registrable Securities, and the Paribas Registrable Securities grant
registration rights superior to those set forth in Section 1 without also making
such rights available to the Holders of the Series A Registrable Securities, the
BET Registrable Securities, and the Paribas Registrable Securities.
(b) So long as the Series A Preferred Stock is still
outstanding, the Company shall not, without the prior written consent of the
Holders of at least 75% of the Series A Registrable Securities, grant rights of
first offer or first refusal superior to those set forth in Section 2.1, without
also making such rights available to the Preferred Stockholders.
3. Miscellaneous.
3.1. Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements
entered into and to be performed entirely within Delaware.
14
3.3. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5. Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given by fax or upon personal delivery to the party to be notified
or upon delivery by recognized overnight courier service, or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
3.6. Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Holders of at
least seventy five percent (75%) each of the Series A Registrable Securities,
the DLJ Registrable Securities, the BET Registrable Securities and the Paribas
Registrable Securities then outstanding; provided that no such amendment or
waiver which adversely affects the rights of any Holder may be made without such
Holder's prior written consent; and further provided that with respect to the
amendments to Section 2.1 only the vote of the Holders of the Series A Preferred
Stock will be required. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder of any Registrable Securities, each
future holder of all such Registrable Securities, and the Company.
3.8. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9. Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
3.10. Restatement. This Agreement amends, restates and
supersedes the Registration Rights Agreement in its entirety and the
Registration Rights Agreement shall be of no further force and effect as of the
date hereof.
15
3.11 Effectiveness. This Agreement shall become effective upon
its execution by a majority of holders of the Series A Registrable Securities
and shall be enforceable in accordance with its terms against the parties that
executed this Agreement.
3.12. Entire Agreement. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
[Signature page follows]
16
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
The foregoing agreement is hereby executed as of the date set forth on the
first page:
COMPANY:
UBIQUITEL HOLDINGS, INC.
By:______________________________________
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
0 Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
FOUNDERS:
_________________________________________
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx X.
Xxxxxxxxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxx X. Judge
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000)000-0000 (fax)
17
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
18
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THE XXXXXX GROUP
By:______________________________________
Name:____________________________________
Title:___________________________________
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000 (fax)
US BANCORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
000 XX 0xx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
PURCHASERS
_________________________________________
Xxxxxx X. Xxxxxx
BROOKWOOD UBIQUITEL INVESTORS, LLC
By:______________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000 (fax)
Copy to: Xxxxx X. Xxxxxxxxxx
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
19
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(000) 000-0000
20
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
LANCASTER INVESTMENT PARTNERS
By:______________________________________
Name:____________________________________
Title:___________________________________
Lancaster Investment Parkview Tower
0000 Xxxxx Xxx., Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxxxxx X. Xxxxxxx, Xx.
c/o Xxxxxxx X. Xxxxxxx, Xx.
Express Marine, Inc.
00xx Xxxxxx on the Delaware
Xxxxxx, XX 00000
(000) 000-0000 (fax)
XXXXXX PARTNERS, LP
By:______________________________________
Name:____________________________________
Title:___________________________________
000 Xxxxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, XX 00000
21
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(000) 000-0000 (fax)
22
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
BALLYSHANNON PARTNERS LP
By:______________________________________
Name:____________________________________
Title:___________________________________
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxxx Xxxxxx
(000) 000-0000 (fax)
CBT WIRELESS INVESTMENTS, LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
0000 X Xxxxxx, #000-000
Xxxxxx, XX 00000
Copy to:
Xxxxxxxx Communications Ltd.
00000 00 Xxxxxx
Xxxxxx XX X00 0X0
(000) 000-0000 (fax)
23
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SPECTRASITE COMMUNICATIONS
By:______________________________________
Name:____________________________________
Title:___________________________________
000 Xxxxxxx Xxxxxx Xxxxx - Xxxxx 000
Xxxx, XX 00000
(000) 000-0000 (fax)
_________________________________________
Xxxx Xxxxxxxx
_________________________________________
Xxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
(000) 000-0000 (fax)
Copy to:
Xxxx Xxxxxxxx
Xxxxx Xxxxxx Xxxxxxx
0000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
(000) 000-0000 (fax)
New Ventures, LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000 (fax)
24
SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Notice Address: PARIBAS NORTH AMERICA, INC.
Paribas North America, Inc.
000 Xxxxxxx Xxxxxx By: __________________________________
Xxx Xxxx, Xxx Xxxx 00000 Name:_________________________________
Fax: (000) 000-0000 Title:________________________________
Attention: Xxxx Aizenberg
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
BET ASSOCIATES, L.P.
By: Xxxxx Xxxx
Its General Partner
By: __________________________________
Xxxxx X. Toll, Member
DLJ Merchant Banking Partners II, L.P.
By: DLJ Merchant Banking II, Inc.,
its general partner
By:___________________________________
Name:
Title:
25
EXHIBIT A
PREFERRED STOCKHOLDERS
Brookwood 4,668,999.33
Lancaster 1,000,500
Marcus 1,800,900
Xxxxxxxxx 50,025
Xxxxxxx 166,750.33
Xxxxxx Partners 900,450
Ballyshannon 500,250
Xxxxxx 250,125
CBT Wireless Investments, LLC 2,701,350
SpectraSite 1,666,500.34
Buechly 300,150
Telecom (New Ventures, LLC) 2,001,000
Xxxxxx 1,000,500
